Brussels II ter, Non-Contentious Proceedings and Bilateral Conventions with Third Countries

The Court of Justice gave on 6 March 2025 its ruling in Anikovi. The case concerns the scope of application of the Brussels II ter Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and its relationship with conventions concluded by a Member State with a third country.

The facts of the case can be summarised as follows. Non-contentious proceedings were brought in Bulgaria on behalf of two Russian minors with a view to obtaining authorisation to sell, with the consent of their mother, the shares they own in three immoveable properties in Bulgaria. Both minors had their habitual residence in Germany.

Uncertain of its jurisdiction, the Sofia District Court referred two questions to the Court of Justice. First, whether the case comes within the material scope of the Brussels II ter Regulation, rather than the Brussels I bis Regulation. Article 24(1) of the latter Regulation, the referring court recalled, confers jurisdiction in proceedings over rights in rem in immovable property on the courts of the Member State in which the property is situated. Secondly, the Court of Justice was requested to indicate what weight, if any, should be given in Bulgaria, in the proceedings in question, to the 1975 treaty on legal assistance in civil, family and criminal cases, concluded in Moscow between the Union of Soviet Socialist Republics, as it was then, and Bulgaria. Article 25 of the treaty provides that parent-child relationships are governed by the law of the Contracting Party in whose territory they have a common domicile, adding that jurisdiction, in this and other matters, “shall be exercised by the authorities of the Contracting Party of which the child is a national or in whose territory he is domiciled or resident”.

The Material Scope of the Brussels II ter Regulation

The Court of Justice held that the proceedings come with the purview of the Brussels II ter Regulation. It observed that the latter regulation applies in matters relating, inter alia, to the exercise of parental responsibility, noting that, as specified in Article 1(2)(e), the said matters concern, in particular, “measures for the protection of the child relating to the administration, conservation or disposal of the property of a child”. The Court also observed that the Brussels I bis Regulation, for its part, governs civil and commercial matters, but excludes from its scope, pursuant to Article 1(2)(a), “the status and legal capacity of natural persons”.

The judicial authorisation sought in the circumstances, the Court noted, “is a measure taken having regard to the status and legal capacity of the minor, which aims to protect the best interests of that minor”. Thus, regardless of the subject matter of the legal act concerned, the measure in question “constitutes a protective measure for the child relating to the administration, conservation or disposal of the child’s property in the exercise of parental responsibility within the meaning of Article 1(2)(e) of the Brussels II ter Regulation, which relates directly to the legal capacity of a natural person concerned, within the meaning of Article 1(2)(a) of the Brussels I bis Regulation”.

Accordingly, the proceedings come within the scope of the former regulation and fall outside of the scope of the latter. The finding echoes the conclusions reached by the Court in Schneider, a case regarding non-contentious proceedings concerning the right of an adult under guardianship to dispose of immovable property, and in Matoušková, on proceedings for the approval by a court of an inheritance settlement agreement between the surviving spouse and the minor children of the deceased represented by a guardian ad litem.

The Court observed on this basis, that, in the circumstances, in accordance with Article 7(1) of the Brussels II ter Regulation, it is the courts of the Member State in which the children are habitually resident at the time the court is seised (the courts of Germany) which, in principle, have jurisdiction to grant the authorisation sought on behalf of the two Russian minors.

The Relationship between the Regulation and the 1975 Russo-Bulgarian Treaty

The Court of Justice went on to assess whether, in the circumstances, the Sofia District Court was permitted to rely, for the purposes of assessing its jurisdiction, on the 1975 treaty between Bulgaria and Russia (which is not specifically mentioned among the conventions that the regulation preserves), no matter whether this would result in the provisions of the Brussels II ter Regulation being derogated.

The admissibility of the question was challenged by the Spanish Government on the ground that the referring court failed to elaborate on the connection of the convention to the subject matter of the main proceedings and did not explain in which way the provision of the treaty might run counter to the rule of jurisdiction laid down in Article 7(1) of the Regulation. The Court of Justice, however, dismissed the challenge, noting that it was clear from the order for reference that Bulgarian courts would normally rely on the treaty to declare that they have jurisdiction, as the courts of the State in which the immovable property is situated.

On the substance of the question, the Court of Justice began by noting that Article 351(1) TFEU enables Member States to respect the rights which third States derive, under international law, from agreements concluded prior to 1958, or prior to accession, and to comply with their corresponding obligations, provided the third State in question can require the Member States concerned to observe such obligations. Where its conditions of application are met, the rule allows derogations from the application of any provision of EU law, whether primary or secondary law. Article 351(2) adds that, to the extent that such agreements are not compatible with the Treaties, the Member States concerned are to take all appropriate steps to eliminate the incompatibilities established.

Recalling its own case-law, the Court of Justice explained that it is for the courts of the Member States to ascertain whether a potential incompatibility between EU law and an international convention, as referred to in Article 351 TFEU, can be avoided by interpreting that convention, to the extent possible and in compliance with international law, in such a way that it is consistent with EU law. If this proves impossible, the Member States concerned are obliged, as said, to take the necessary measures to eliminate such incompatibility of that convention with EU law, including, where appropriate, by denouncing it. However, pending such elimination, Article 351 TFEU permits the courts in the Member States in question to continue to apply that convention.

The Court of Justice refrained from assessing whether the Russo-Bulgarian treaty contains rules that the Russian Federation may require that Member State to respect, and whether the latter treaty is incompatible with the Brussels II ter Regulation in that those two legal instruments do not provide that the same court has jurisdiction in the circumstances under discussion. While leaving both evaluations to the referring court, the Court of Justice explained that the context of the above verification, it will be necessary to take into account not only Article 7(1) of the Brussels II ter Regulation, but also Article 7(2) of that regulation, according to which paragraph 1 of that article “shall be subject to Articles 8 to 10” of that regulation, wording which reflects the will of the EU legislature to provide, in certain situations, for the jurisdiction of courts other than those of the child’s place of habitual residence, those courts being designated on the basis of the criterion of proximity.

Article 10(1), on choice of court, could be of special interest here, as it provides – the Court of Justice observed – that jurisdiction may be conferred on the courts of a Member State other than the State of their habitual residence, provide, among other conditions, that the child concerned has a substantial connection with the former State. The provision indicates that such connection may exist “in particular” with the State of habitual residence of at least one of the holders of parental responsibility, the State where the child had a former habitual residence, or the State of nationality of the child. The list is not exhaustive, and it may therefore also be established that there is a substantial connection on the basis of another factor, including, as the case may be, by virtue of the situation of the immoveable property to which the authorisation relates. Of course, all the other conditions laid down in Article 10 need to be met for a court in the latter State to asset its jurisdiction. In the circumstances, this means that the referring court could entertain the case in accordance with Article 10 if it established (i) that the case has a concrete and significant connection with Bulgaria, having regard to the personal interests of the child concerned, (ii) that, given that in non-contentious proceedings, such as those at issue in the main proceedings, there is no defendant party, the mother of the minor, as the sole holder of parental responsibility, expressly accepts the jurisdiction of that court in the course of the proceedings after having been informed of her right not to accept it, and (iii) that the exercise of that jurisdiction is in the best interests of the child.

If the referring court were to find that the Russo-Bulgarian treaty is incompatible with the Brussels II terRegulation in so far as it confers jurisdiction on courts other than those designated by Articles 7 to 10 of that regulation, it will have to examine whether that incompatibility can be avoided by adopting an interpretation of that treaty that is consistent with that regulation. If that is not possible and it does not itself have the power to eliminate that incompatibility, the referring court will, in the fourth place, be able to apply the rules of that treaty and disregard those of the Brussels II ter Regulation.

The Court of Justice considered it appropriate to emphasise that, while the courts of the Member States are required to verify whether any incompatibility between EU law and an earlier bilateral convention can be avoided by adopting an interpretation of that convention (“so far as possible and in compliance with international law”), that is consistent with EU law, they are not required to verify whether a similar incompatibility can be avoided by interpreting or applying EU law in a manner that is consistent with that convention.

This entails, the Court indicated, that the Sofia District Court must not have recourse to the possibility of asserting its jurisdiction under Article of the Brussels II ter Regulation, instead of applying the general rule of jurisdiction set out in Article 7(1) of that regulation, “with the aim of reconciling EU law with the Russo-Bulgarian Treaty and, in so doing, of finding that, in the circumstances of the dispute in the main proceedings, that treaty is compatible with EU law in so far as they both provide for the same court to have jurisdiction in that dispute”.

To summarise, a court in a Member State, seised of a matter that comes within the scope of both the Brussels II ter Regulation and a convention in force with a third country, must begin by assessing whether, in the circumstances, the third State in question may require, under the convention, that the courts in the Member State in question comply with the provisions in the convention. In the affirmative, if respect for the convention appears to prevent the State concerned from complying with the regulation, the seised court must assess whether the relevant provisions of the convention can be interpreted (in accordance with the rules of interpretation in force in international law) in a way that is consistent with EU law. If this is not the case, then the court is permitted, under Article 351(1) TFEU, to derogate from the regulation.

The obligations imposed on the Member State concerned in accordance with Article 351(2) TFUE to eliminate any established incompatibility between EU law and prior agreements with third State remain in place, but this does not prevent the courts in that Member State from applying, in the meanwhile, the agreements in question.